EO & 2 others v JOSY (Civil Appeal (Application) E027 of 2020) [2023] KECA 254 (KLR)
The bottom line
#Kenya's Court of Appeal allowed appellants to introduce a marriage certificate proving a respondent lacked capacity to marry, reshaping succession dispute rules.
What this practically means
#Executive summary
#Key legal issues
#Relevance and materiality of the additional evidence
Evidence negating the Respondent's capacity to marry the deceased is directly relevant to the issue of presumption of marriage, which is central to the appeal.
The trial court found a presumption of marriage between the Respondent and the deceased based on long cohabitation, without direct evidence of marriage. Any evidence showing the Respondent lacked capacity to marry at that time, such as an existing subsisting marriage to a third party, goes to the heart of that presumption and the parties' competing claims to the estate.
Reasonable diligence for obtaining the evidence at trial
The Applicants could not have anticipated that the presumption of marriage would arise, since it was not among the reliefs sought, and so the evidence could not have been obtained with reasonable diligence for use at trial.
Because the issue of presumption of marriage was not part of the prayers before the trial court, the Applicants had no reason to investigate or obtain evidence of the Respondent's earlier marriage. The Court accepted that the document was a one-page certified registry entry, not voluminous, and that the Respondent admitted its genuineness while asserting the marriage was later dissolved, a matter to be tested at the hearing.
Credibility, proportionality and prejudice
The evidence is apparently credible (a State registry document the Respondent admits is genuine) and, weighing proportionality and prejudice, it is in the interest of all parties that the matter be resolved on all issues in controversy.
The Respondent, though aware of his earlier marriage, did not disclose it at the hearing, which supports a strong prima facie case. There was no indication the evidence was being used to fill gaps or patch up a weak case. Since the Respondent intends to contend the marriage was dissolved, the trial court is best placed to take the contested evidence and certify its credibility opinion.
Legal principles established
#- The Court of Appeal may, in its discretion and for sufficient reason under Rule 29/31, take additional evidence or direct that it be taken by the trial court, guided by established principles including relevance, probable influence on the result, reasonable diligence, credibility, and proportionality.
- Where additional evidence is likely to be contested, the appellate court may direct that the trial court take the evidence and certify it with its opinion on witness credibility.
Court orders
#- 1.The Motion dated July 8, 2022 is allowed as merited
- 2.The High Court, Mombasa is directed, pursuant to Rule 31 of the Court of Appeal Rules, 2022, to take the additional evidence and certify it to the Court of Appeal together with its opinion on the credibility of the witnesses giving the additional evidence
- 3.Costs of the application to be in the appeal
- On appeal from
- High Court of Kenya at Mombasa
- Not stated in the judgment
- Jurisdiction invoked
- Rule 29 of the Court of Appeal Rules, 2010 (now Rule 31 of the Court of Appeal Rules, 2022)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "EO & 2 others v JOSY (Civil Appeal (Application) E027 of 2020) [2023] KECA 254 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/254/eng@2023-03-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.